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Appeal from sexual assault conviction. W(D) case with sole issue being consent. Trial judge found the appellant’s assertions that he was not interested in sex, wanted to avoid sexual contact, and refused the complainant’s attempts to fellate him to be “unbelievable”. Issue on appeal of whether trial judge erred by applying stereotypical myths in rejecting the appellant’s evidence.

Held: Appeal dismissed.

“It is inappropriate for a court to apply or rely on generalizations or stereotypes about sexual behaviour whether assessing the conduct of an accused person or a complainant.” In isolation, some of the judge’s comments might raise concerns about “stereotypical male thinking and attitudes”. However, in context of the entire judgment, it was clear the trial judge’s views concerned this appellant, rather than men generally: he “was not suggesting that it was ‘unbelievable’ that a man would be less interested in engaging in sex than a woman but rather that he found it unbelievable in view of all of the evidence that the appellant was not interested in engaging in sex with the complainant.” Berger JA dissented.